It Begins

The Drew Peterson trial has begun in the Will County courtroom of Judge Stephen White, with hearings on the admissibility of various pieces of hearsay evidence. This is pretty normal -- a lot of trials have significant evidentiary issues that only a hearing can resolve -- it is atypical for the judge to be confronted with over 20 witnesses presenting various pieces of hearsay testimony. At least 20 witnesses. The prosecution's witness list for the trial has roughly 60 entries, and the hearings aren't over.

Over 20 witnesses whose testimony requires evidentiary hearings? What is going on down there?

I have the greatest respect State's Attorney Glasgow, and appreciate the strange position his office has found itself in: an incredibly unpopular defendant being pursued by what appears to be a very flimsy case. What's worse, due to the publicity of this prosecution, the state legislature got involved, and now things are a giant mess. Consider this a quick primer on the slow-motion train wreck going on in Joliet.

Peterson's case is strange and opaque, swirling in a sea of rumor and innuendo. Between the ASA and Mr. Peterson's attorneys, there is probably some small chance of piecing together a coherent narrative. Unfortunately for the state, it seems that coherence has thus far been pretty evasive, and in its place the State's Attorney's Office appears to be trying to pile as many people into the courtroom as possible, in the hope that if they throw enough at the wall, they'll get just enough to make everything stick.

It's not a bad idea, and it may very well work. Nobody likes Drew Peterson, that much is clear. Everyone from his family members to his former colleagues to his pastor have lined up to tell the court either how miserable a person he was or how they gave him some favor that the witness now regrets. One of the chief problems with this strategy is that the entire process is mired in the controversy surrounding the disappearance of this fourth wife, despite the fact that these hearings are for a murder trial regarding his third wife.

For instance, according to reports on 21 January Mr. Thomas Morphy testified at the evidentiary hearing. The curious thing is that, from what I gather, the entirety of his testimony relates to the disappearance of Peterson's fourth wife (again, not the trial you're looking for). There is a lot of talk about blue barrels and discussions about Stacy Peterson, and a snippet about Kathleen Savio: Mr. Morphy testified that he told Mr. Peterson that he thought Mr. Peterson had killed Kathleen, which Mr. Peterson denied. A lot about Ms. Peterson, little about Ms. Savio, and what is there is hardly helpful to the state. Someone accused another person of murdering someone, and that person denied doing so.

The testimony already concluded gets even further into the weeds, and Judge White should be commended for wading through it all, especially complicated issues of privilege regarding various conversations between Mr. Peterson, Ms. Savio, and their minister. There was yet more testimony about Ms. Peterson (again, not the victim in this case) from neighbors. What she said probably wouldn't even be admissible in a prosecution of Ms. Peterson's death: "If I disappear, Sharon. It's not an accident. He killed me." Why is this being presented in this trial? I don't have my copy of Cleary & Graham's at hand right now, but I don't remember a case laying out a prophecy exception to the hearsay rule.

In stepped the Illinois legislature, which last year passed the "Drew Peterson Law," allowing the state to use hearsay testimony regarding violence or threats from deceased witnesses if the defendant was responsible for that witness's inability to testify at trial. This seems like a great law; victims of domestic violence will sometimes cry out to friends, and even if the authorities receive notice of this too late, it is somewhat comforting that their outcries would not be in vain. The major problem is that human memory is fickle and not as reliable as we would like, and under this scheme the judge must determine, essentially, that the defendant is guilty before even ruling on the admissibility of evidence. The other main problem is that, as many have already commented, the U.S. Supreme Court struck down a nearly identical law as violative of the sixth amendment's confrontation clause.

Why is the State's Attorney wasting his time with all of this? Why did Springfield feel the need to get involved? Probably because the hard facts on the case are awful for the prosecution. They're on to the right track with testimony from her doctor, stating that she was in fine health and not at risk for dangerous bathroom falls, but how does that help? The doctor can say it's unlikely, but no doctor's visit can predict an unfortunate fall by an otherwise healthy adult. Testimony by the former officer who led the investigation hits close to the mark but falls similarly short. It is generally objectionable for an officer to give another officer a "break," or throw an investigation because they don't think a fellow officer is capable of committing a horrible crime, so it's good that Sgt. Collins came clean. Perhaps doing the investigation properly at the time would have pointed the finger at Mr. Peterson, but the time for that has clearly passed. Trying to create a negative implication that the police's failure to investigate properly is evidence of Mr. Peterson's guilt is crass, illogical and quite frankly dangerous.

Again, part of me can't blame them for trying. At the heart of the case is a ME report classifying the death as an accident, which was recently changed to a finding of homicide. A modified ME report is not a solid basis for prosecution; it's even worse that the report was changed years after the fact, due to a third party's investigation. The disturbing and essential facts of that third-party autopsy are that it a) took place during the media firestorm surrounding the disappearance of Ms. Peterson, and b) FOX News paid for the doctor to fly to Chicago for the investigation, and then immediately ran the results on the Internet and on its television network. This is by far the strongest evidence that Mr. Peterson murdered Ms. Savio, and it's tainted not only by the Medical Examiner's Office's about-face, but by the integral part a news organization played in bringing that change of heart about.

I have every confidence that Judge White will do an excellent job sorting out the massive pile of hearsay he has been confronted with, having to determine, based on what the state is asking for, that Mr. Peterson was responsible for the death of Ms. Peterson and Ms. Peterson repeated, to various third parties, certain things that Mr. Peterson said to Ms. Peterson regarding the death of Ms. Savio for the purpose of threatening Ms. Peterson. This puts Judge White in the unenviable position of putting the cart before the horse in a murder trial, where the cart of a murder trial is already an evidentiary mess and the horse is another, entirely separate murder trial, where the prospective defendant hasn't even been indicted. Then, the judge needs to go through and figure out which parts of the hearsay were both threats by the defendant (who, after testimony by a few witnesses, has to have at this point been convinced that the defendant is guilty of murder) and admissions of guilt regarding the death of Ms. Savio, even under the new rule.

This goes well beyond even the misguided ambition of Springfield. My concern is that the State's Attorney's Office has decided that it can prosecute someone for one crime and prove him guilty beyond a reasonable doubt mainly on evidence of a separate, unrelated crime that occurred years later, but through several levels of hearsay implicated the prior event. Even relying upon the "Peterson Law," the testimony described by observers is dissociated from any threats made by Peterson to Ms. Savio to a fairly ridiculous degree. This is dangerous and worrisome, not only to defendants and defense attorneys, but prosecutors and the public at large. The U.S. Supreme Court has recognized this sort of triple-hearsay-from-the-grave severely impairs defendants' right to a fair trial and to confront the witnesses testifying against him, and as frustrating and demoralizing to the public and to the prosecution that a defendant that nearly all are convinced is guilty would walk free, convictions that are not based on sound logic and contested evidence do nothing to make anyone more safe.

Will State's Attorney Glasgow get his conviction? Possibly. Mr. Peterson is generally reviled and if even half of the evidence that Judge White is considering is allowed, I imagine most jurors would line up for the chance to throw him in prison. I can also clearly imagine the appellate court throwing his conviction out, and with all the effort by Will County authorities and the legislature to bring Mr. Peterson's prosecution this far, this could cause major headaches for all involved.